People v Hamilton

People v Hamilton 2016 NY Slip Op 00514 Decided on January 27, 2016 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 27, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
MARK C. DILLON
SHERI S. ROMAN
COLLEEN D. DUFFY, JJ.
2013-09044
(Ind. No. 7672/12)

[*1]The People of the State of New York, respondent,

v

Barry Hamilton, appellant.

Lynn W. L. Fahey, New York, NY (Samuel Brown of counsel), for appellant.

Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove and Sholom J. Twersky, and Anthony W. Mariano [Davis Polk & Wardwell LLP] of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Riviezzo, J.), rendered August 26, 2013, convicting him of assault in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the prosecutor's comments during summation deprived him of a fair trial is unpreserved for appellate review (see CPL 470.05[2]). In any event, most of the prosecutor's comments were not improper, since they constituted fair response to the defendant's attack on the credibility of the People's witnesses, or were within the bounds of appropriate argument based on the evidence (see People v Galloway, 54 NY2d 396, 399; People v Arroyo, 125 AD3d 987, 988; People v Torres, 71 AD3d 1063, 1063).

While it may have been improper for the prosecutor to comment during the summation that "there is no dispute that the defendant is the person who perpetrated this crime" (see People v Adamo, 309 AD2d 808, 809), any taint or prejudice would have been ameliorated by the trial court's instructions as to the proper burden of proof, which the jury is presumed to have followed (see e.g. People v Davis, 58 NY2d 1102, 1104; People v Overlee, 236 AD2d 133, 142).

The defendant's remaining contentions are without merit.

RIVERA, J.P., DILLON, ROMAN and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court